Disgruntled Employee's Outcry In Social Media Part Of Free Speech : Kerala HC [Read Judgment]

Observing that emotional outburst of a disgruntled employee is part of free speech, the High Court of Kerala ordered the reinstatement of a University employee who was suspended for his social media posts against the institution.

The Court was acting on a petition filed by a University Assistant of Mahatma Gandhi University, who posted sarcastic comments in social media following his removal from the membership of University Employees Association. Though his comments did not specifically refer to the institution or its officials, taking his outcry as a veiled attack on it, the University placed him under suspension. Challenging the suspension as vengeful, the petitioner approached the High Court.

The University defended its decision stating that his posts were a call to other employees to rebel against it and that the posts had tarnished the prestige of the institution.

Considering the petition, Justice Muhamed Mustaque observed "Emotional outburst of a disgruntled, through social media in a louder voice is part of his right of free speech. In certain circumstances, there are chances that such public outburst would intersect with the Institution's interest"

The Court opined that the thoughts of the petitioner resembled the sentiments expressed by Charlie Chaplin in his autobiography that "My prodigious sin was, and still is, being a non-conformist"

It was also held that discipline and servitude were not the same and that no authority should expect one to be silent.

"Discipline and servitude are to be distinguished. If an employee speaks out in the social media in a general perspective which is not inconsistent with the collective interest of the Institution, that is part of his right of free speech. No authority should expect one to be silent. Survival of public Institution depends upon how it accounts for democratic values. Free expression is the corner stone of democratic value. Every functionary of public power therefore, must command liberty to their constituents", Justice Mustaque stated in the judgment.

At the same time, the Court added that freedom of expression was not absolute and that when the individual right of an employee becomes repugnant to the collective interest of the Institution, the individual must fall within the lines of collective interest. "If such expressions breach the limit or boundary and it entrench to tarnish the prestige of the Institution, such tendency must be desisted through actions", observed the judgment.

The Court however refrained from expressing anything on whether the posts of the petitioner crossed the line amounting to misconduct.  The Court agreed that it was a matter for inquiry. However, the continued  suspension of the employee(which had crossed 60 days on the date of judgment) was held to be unjustifiable.  The impugned posts were already in public domain and there was no chance of the petitioner interfering with the materials against him. So, the inquiry against him will not be prejudiced if he is reinstated. On the basis of the principle that suspension cannot be used as a weapon to penalise, the Court ordered his reinstatement.

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